Request By:
Honorable John R. Cummins
Greenebaum Doll Matthews & Boone
3300 First National Tower
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
On behalf of the Muhlenberg County Attorney and County Clerk and yourself, you request our opinion as to the recordability of mineral leases executed before two (2) subscribing witnesses. No acknowledgment before the clerk or deputy or a notary by the grantor appears on the leases. We assume from your letter that two persons merely signed underneath the lessor's signature as a "subscribing witness" , without any explanatory statement. The county clerk, upon the advice of the county attorney, has refused to record the leases without one or both of the subscribing witnesses to each lease executing an affidavit attesting to the witnesses' signatures on the leases. You ask whether the clerk is right in making this demand.
As you mention, KRS 382.080(1) provides that no oil, gas, or coal lease for a longer period than five years shall be good against a purchaser for a valuable consideration without notice thereof unless the instrument is proved and lodged for record in the proper office, as prescribed by law. We assume the leases in question come within the terms of that statute.
You also cite KRS 382.130 as applying to the recordability of deeds and leases of the kind in question. We agree. The only remaining question is whether the leases in their present form, and absent any extrinsic affidavits of the subscribing witnesses, conform to the requirement contained in KRS 382.130(2). The statute [and subsection] provides that such instruments may be admitted to record "by the proof of two (2) subscribing witnesses, or by the proof of one (1) subscribing witness, who also proves the attestation of the other." (Emphasis added).
An acknowledgment is a formal declaration or admission, by the person executing the instrument, before an authorized public officer that such instrument is his act and deed. Billington v. Dunn, 217 Ky. 164, 289 S.W. 213 (1926) 214. It is our opinion that KRS 382.130 deals with an acknowledgment before the clerk, deputy clerk, or notary public. But importantly it specifically describes other means of acknowledgment which will authorize the recording of the instrument. Cain v. Gray, 146 Ky. 402, 142 S.W. 715 (1912). One specific option of acknowledgment is found in subsection (2) of KRS 382.130. Thus the phrase "proof of two subscribing witnesses" actually refers to the grantor's or lessor's acknowledgment before two subscribing witnesses.
It is our opinion, under the facts given, that in order for these leases to be properly recordable, the two subscribing must execute a certificate of acknowledgment before the clerk, deputy clerk, or notary public, stating as follows:
"Commonwealth of Kentucky, County of I, , , [title of officer], do certify that this day came before me and , the subscribing witnesses to the foregoing lease by to , which witnesses are personally known by me to be the same whose names are so written as witnesses, and being duly sworn by me, did severally declare on their oaths that the said [name of lessor] did acknowledge this instrument to be his act and deed, that the signature thereto was made by him, in their presence, that they know him to be the same person who is named as the lessor therein, and that they did subscribe said lease as witnesses by his request, in his presence, and in the presence of each other.
Given under my hand and seal of office this the day of , 19.
[Title of Officer]"
You will find the above certificate in Caldwell's Kentucky Form Book (3rd edition), Form 1.9, page 5. Such certificate, when properly accomplished, should be recorded in immediate juxtaposition to the recorded lease.
As to the other alternative of the proof of one subscribing witness, who also proves the attestation of the other, see Form 1.10, Caldwell's Form Book, p.p. 5-6.
The court said, in Middlesborough Waterworks Co. v. Neal, 105 Ky. 586, 49 S.W. 428 (1899) 428, in connection with an earlier form of subject recording statute, that proof of execution of a deed by witnesses simply meant that the witnesses must make oath to such facts as would show that the deed had been executed by the grantor.
Finally, the recording certificate of the clerk should read like this (where form 1.9 is used):
"State of Kentucky, County. I, , Clerk of the County Court of County, in the State of Kentucky, do certify that on this day at o'clock, .m., the foregoing lease was produced to me in my office, along with the certificates or proof of the subscribing witnesses as required by law, and that I have recorded such lease and certificates, and the foregoing certificate in my office.
Witness my hand this day of , 19.
Clerk, County Court By D.C."
See KRS 382.130(5).